### COURT OF APPEALS DECISION DATED AND FILED March 1 , 2022

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP1982

- CR Cir. Ct. No. 2017CF2671 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

S TATE OF W ISCONSIN ,

P LAINTIFF - R ESPONDENT ,

V .
R OMERO M. W ATSON ,

D EFENDANT - A PPELLANT .

APPEAL from a judgment of the circuit court for Milwaukee County:
FREDERICK C. ROSA , Judge. Affirmed

.

Before Donald, P.J., Dugan and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the l imited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2019AP1982

- CR

2 ¶ 1 PER CURIAM. Romero M. Watson appeals from a judgment, following a jury trial , in which he was convict ed o f three drug charges and two gun charges. He argues that the circuit cou rt erred when it refused an evidentiary hearing
and denied his motion to suppress. Watson also argues there was insufficient evidence to support three of the convictions. We affirm

.
BACKGROUND
¶ 2 Milwaukee police officers received inform ation from a confidential informant, who had previously provided credible information , that a man he knew as “RoRo” was selling cocaine , marijuana , and pills from a residence. The informant also told police he had seen RoRo with a gun. The informant described
RoRo and identified Watson as RoRo from a booking photo. The police had the
informant engage Watson in a controlled buy of cocaine . Office r Christopher Conway then completed a search warrant affidavit and obtained a no

- knock warrant.
¶ 3 When p olice executed the warrant , there were seven people at the
residence , including Watson. Watson ran out the back door towards a fence, then
doubled back towards a n SUV . After officers took Watson into custody, they found

a handgun under the SUV.
¶ 4 In the residence’s dining room , police recovered drug paraphernalia and baggies of cocaine, along with various identifie r s for Watson , including his driver’s license, an energy bill, and other mail addressed to him at the residence. There were photos of Watson located ne ar the dining room china cabine t, including photos of Watson in that very room. In the northwest bedroom, police found cocaine, marijuana , and pills in a dresser . There were additional identifiers for
Watson in th at bed room, including a vehicle title, his social security card, a debitNo. 2019AP1982

- CR

3 card, and more mail addressed to him. In a backpack in the bedroom ’s close t, police found marijuana, cocaine, and a loaded semi

- automatic 9mm handgun.
¶ 5 In the second amended information filed in this case, Watson was charged with possession with intent to deliver more than forty grams of cocaine as a second or subsequ en t offens e ; possession with intent to deliver between 200 and 1000 grams of tetrahydrocannabinols as a second or subsequent offense; possession
with intent to deliver between ten and fifty grams of methamphetamine as a second

or sub sequent offense; and two counts of possession of a firearm by a felon

. ¶ 6 Watson moved to suppress all evidence obtained from execution of
the search warrant , alleging that the warrant application failed to establish probable

cause to issu e the warrant. He also asserted that “ information regarding the credibility of the informant was omitted fr o m the affidavit in reckless disregard for the truth.” The circuit court denied the motion without an evidentiary hearing, and
the case was tried t o a jury. The jury convicted Watson of all five offenses, and he

was ultimately given concurrent and consecutive sentences totaling thirteen years of initial confinement and seven years of extended supervision. Watson appeals.

DISCUSSION

Motion to Suppre ss/Search Warrant Application
¶ 7 A circuit court’s decision on a motion to suppress evidence presents a mixed question of fact and law. See State v. Casarez , 2008 WI App 166, ¶9, 314
Wis. 2d 661, 762 N.W.2d 385. We do not reverse the court’s factual findings unless clearly erroneous, but the application of constitutional principles to those findings
is reviewed de novo

. See id.No. 2019AP1982

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4 ¶ 8 “A search warrant may issue only upon probable cause. ” State v.
Jones , 2002 WI App 196, ¶10, 257 Wis. 2d 319, 651 N.W.2d 305. On review of a challenge to probable cause for issuance of a search warrant, we examine “‘the totality of the circumstances presented to the warrant

- issuing commissioner to
determine whether the warrant

- issuing commissioner had a substantial basis for concluding that there was a fair probability that a search of the specified premises would uncover evidence of wrongdoing.’” State v. Silver stein , 2017 WI App 64, ¶13, 378 Wis. 2d 42, 902 N.W.2d 550 (citation omitted). We accord great deference
to the warrant

- issuer’s determination of probable cause. See State v. Kerr , 181
Wis. 2d 372, 379, 511 N.W.2d 586 (1994).
¶ 9 In Frank

s v. Delaware , 438 U.S. 154, 155

- 56 (1978), the United States Supreme Court determined that a defendant was entitled to a hearing upon “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the [search]
warrant affidavit , and if the allegedly false statement is necessary to the finding of probable cause.” In State v. Mann , 123 Wis. 2d 375, 385

- 87, 367 N.W.2d 209 (1985), our supreme court recognized that Franks could also be applied to the
omission of critical material from a warrant application . Then, “ ‘ [t] he defendant
must show that the information omitted was material to the determination of probable cause and that it was omitted for the purpose of mi sleading the magistrate. ’ ” Mann , 123 Wis. 2d at 390 (quoting Illinois v. Stewart , 473 N.E.2d 840, 851 (Ill. 1984) ). “To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to

cross

- examine .” Franks , 438 U.S. at 17 1

. ¶ 10 In his suppression motion, Watson asserted that the warrant application and affidavit were insufficient to establish probable cause for a warrantNo. 2019AP1982

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5 because they were “based on the claims of one unnamed informant ,” some
information was “either stale or completely void of reference to time frames,” and
the affidavit “does not provide sufficient or adequate information related to the credibility of the i nformant upon whom it relies.” In an oral ruling, the circuit court acknowledged Franks , and that, under Mann , the holding from Franks applies to
omissions. It went through the warrant application, noting the information within
it. For instance, t he inf

ormant had been used and found to be reliable in the past,
which resulted in a prior search warrant, recovery of contraband , and the filing of
criminal charges

. The court further noted that police in this case actually conducted a controlled buy, so “it i sn’t just the word of the informa n t.”
¶ 11 Based on the information that was in the warrant application, the
circuit court believed there was probable cause for the warrant to be issued. It explained that Watson “ basically

... speculated as to different explanations as to what might have occurred, could have occurred,” but that he offered nothing to support those assertions

. The court determined Watson had not alleged, much less shown, what information w as “knowingly and intent ionally or with reckless disregard for the truth” omitted from the application. Instead, the court perceived,
Watson was simply saying he “ would like to know more about the confidential
informa nt and we don’t believe that person is reliable .” Thus, the c ircuit court denied the motion to suppress.
¶ 12 On appeal, Watson’s brief similar ly contains facts Watson would have liked to know, but no explanation as to how that omitted information was “ ‘ m aterial to the determination of probable cause ’ ” and nothing to demonstrate that the information “ ‘ was omitted for the purpose of misleading the magistrate

. ’ ” See
Mann , 123 Wis. 2d at 390 ( citation omitted). He points out , for instance , that a specific date and time for the controlled buy were not provided. However, theNo. 2019AP1982

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6 warrant application specifi ed that the buy had occurred within the preceding seventy

- two hours. Watson cites no authority for the proposition that greater specificity is required. While he asserts that a Franks/Mann hea r ing would have
shown that the controlled buy could not have occurred, that assertion is entirely conclusory and , thus, it is insufficient to m andate a hearing. See Franks , 438 U.S.
at 171

. ¶ 13 Citing federal cases, Watson also argues t hat the circuit court failed to
consider several factors for determin ing probable cause, including whether the
informant personally presented an affidavit , the extent of police corroboration of the informant’s statement, and the amount of detail provided

. See United States v.
Jones , 208 F.3d 603, 609 (7th Cir. 2000); United State s v. Reddrick , 90 F.3d 1276, 1281 (7th Cir. 1996). As noted, however, we examine the totality of the
circumstances surrounding the warrant application

. See Jones , 257 Wis. 2d 319, ¶10. “ T here are no longer specific prerequisites to a finding of confidential informant reliability. Rather, the current test simply requires courts to ‘consider all of the circumstances set forth in the affidavit, including the veracity and basis o f knowledge of persons supplying hearsay information.’” Id. , ¶13 ( citation omitted).
T he warrant issuer may draw reasonable inferences from the facts set forth in the affidavit, and the test is simply whether the inference drawn was reasonable, not
that it was the only reasonable inference. See id. , ¶10. A determination of probable cause “will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause.” Id. , ¶11.
¶ 14 We agree wi th the circuit court that the search warrant affidavit supplied probable cause for a warrant to issue and that Watson has not identified any critical omission from the warrant application that would have defeated probable cause. Though Watson might have l iked to challenge the informant’sNo. 2019AP1982

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7 credibility through cross

- examination, that is not the appropriate test. See Franks , 438 U.S. at 171. The circuit court properly denied the motion to suppress and request for a Franks/Mann hearing.
Sufficiency of the E

vidence
¶ 15 Watson also contends that there was insufficient evidence to suppo rt his convictions relating to the cocaine, the marijuana , and one of the guns; specifically, Watson argues that, although the evidence was sufficient to support an inference that he possessed some of the drugs found in the residence, the evidence

was insufficient to prove that he possess ed the backpack that was found in the bedroom and contained drugs and a gun

. At best, Watson contends, the State shows
he was wi thin the backpack’s presence, not in possession of it , as police testified that the backpack was readily moveab le and had no identifiers in it

. He asks that the drug counts b e modified to lesser felonies to account for smaller quantities of drugs that cou ld be attributed to him , and that the associated felon in possession charge be vacated.
¶ 16 “When a defendant challenges a verdict based on sufficiency of the evidence, we give deference to the jury’s determination and view the evidence in the light most favorable to the State.” State v. Long , 2009 WI 36, ¶19, 317 Wis. 2d 92, 765 N.W.2d 557. Whether the evidence is direct or circumstantial, this court “may not substitute its judgment for that of the trier of fact unless the evidence,
viewe d most favorably to the [S] tate and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” State v. Poellinger , 153 Wis. 2d 493, 501, 507, 451 N.W.2d 752 (199 0). “If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisiteNo. 2019AP1982

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8 guilt, an appellate court may not overturn a verdict even if it believes that the trier
of fact shou ld not have found guilt based on the evidence before it.” Id. at 507.
¶ 17 Although there were no identifie r s for Watson in the backpack , it was
recovered from the closet of a bedroom with numerous identifie r s for Watson found throughout

. N o identifiers for any other person were found in the bed room, suggesting that Watson had exclusive control of the bed room.
¶ 18 Actual physical possession of an item is not required; an item is also “in a person’s possession if it is in an area over which the person has control and the person intends to exercise control over the item.” W IS JI

— C RIMINAL 920; State v. Allbaugh , 148 Wis. 2d 807, 813

- 14, 436 N.W.2d 898 (Ct. App. 1989). It would have been more than reasonable for the jury to inf er that the drugs and gun found in a backpack belonged to the backpack’s owner; that a backpack found in the closet
of a bedroom belonged to the person who controlled the bedroom ; and that, in t his case, the person who controlled the bedroom was Watson. A ccordingly, sufficient evidence supports the verdicts

.

By the Court.

— Judgment affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5 . (2019

- 20)

.